Miroslav GMAJNER and Others v Slovenia - 16104/06 [2011] ECHR 297 (25 January 2011)

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Applications nos. 16104/06, 18464/06, 19081/06, 20250/06 and 832/07
by Miroslav GMAJNER and Others
against Slovenia

The European Court of Human Rights (Third Section), sitting on 25 January 2011 as a Committee composed of:

Elisabet Fura, President,
Boštjan M. Zupančič,
Ineta Ziemele, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the Government’s settlement proposals made to the applicants,

The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.

The applicants were parties to civil proceedings which terminated before 1 January 2007.

The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.

Section 25 lays down the following transitional rules in relation to the applications already pending before the Court:

Section 25 - Just satisfaction for damage sustained prior to implementation of this Act

“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest.....

(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”

The applicants complained under Article 6 § 1 of the Convention that the civil proceedings had been excessively long. They also complained under Article 13 of the Convention that they did not have an effective domestic remedy in this respect.

The applicants also had further complaints. The applicant Mr Miroslav Gmajner complained under Article 6 § 1 that he did not have a fair trial, because the domestic courts relied on two expert reports which in his opinion wrongly calculated the amount of compensation he was entitled to for the time he was suspended from work. By claiming that the compensation awarded was too low, he raised in substance complaints under Article 1 of Protocol No. 1.

The applicant Mr Marjan Koder complained that the long pending domestic proceedings and in particular the bankruptcy proceedings had adverse effects on the good name of his company and in substance relied on Article 8. Similarly, he complained that the protracted domestic proceedings had negative repercussions on his property rights, thereby relying on Article 1 of Protocol No. 1. In this respect, he argued that in a separate set of proceedings the Nova Gorica District Court (OkroZno sodišče v. Novi Gorici) found that he indeed suffered material and immaterial damage during the lengthy proceedings, and established that a third person, V.P., was responsible for his loss, since it was her who had initiated the proceedings at issue and had brought unsubstantiated claims against him. It ordered that she should therefore also pay the necessary compensation to the applicant.

The applicant Ms Barbara Sedonja complained that the domestic courts should have awarded her a higher amount of compensation for being deprived in her childhood of financial maintenance by her father, after he had been unlawfully arrested by the Yugoslavian authorities in 1947. In this respect, she invoked Articles 6 § 1 and 13 of the Convention, as well as Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7.

The applicant Ms Brigita Lorenčič complained that until the domestic courts finally awarded her the status of a disabled person, she could not find work and earn enough money for her family, invoking in substance Article 1 of Protocol No. 1.

Ms Sonja Antloga-Hrovat complained under Article 6 § 1 that the enforcement proceedings initiated against her by the tax authorities were unfair, since she could not participate at the auction due to her illness and had to learn about the particulars of the purchase only from the most general information available in the file. She further complained under Article 1 of Protocol No. 1 that she was forced to close down her store because of the enforcement proceedings, thereby sustaining the loss of her income.

A. Complaints about the length of the proceedings under Articles 6 and 13 of the Convention

In the present cases, the Court notes that, after the Government had been given notice of the applications in 2009 and 2010, all the applicants received the State Attorney’s Office’s settlement proposals under section 25 of the 2006 Act acknowledging a violation of the right to a trial within a reasonable time and offering redress for non-pecuniary damage (see the attached annex). It further notes that the applicants have since been in a position either to negotiate a settlement with the State Attorney’s Office or, if that should be unsuccessful, to lodge a “claim for just satisfaction” in accordance with the relevant provisions of the 2006 Act (see “Relevant domestic law” above). The latter has been considered by the Court to constitute appropriate means of redressing a breach of the reasonable time requirement of Article 6 that has already occurred (see Pohlen v. Slovenia (dec.), no. 28457/03, §§ 40-43, 3 June 2008).

The Court reiterates Article 37 of the Convention, which in the relevant part reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

Having regard to the foregoing, the Court considers that it is no longer justified to continue with the examination of the applications in the part concerning complaints about the length of proceedings under Article 6 § 1 and the lack of domestic remedies in this respect under Article 13, and that they should be struck out of the list of cases in accordance with Article 37 § 1 (c). In reaching this conclusion, the Court has taken into account its competence under Article 37 § 2 of the Convention to restore a case to its list of cases if it considers that the circumstances justify such a course.

As far as the other applicants’ complaints are concerned, the Court considers that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the Convention. It follows that they are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

Decides to strike the applications out of its list of cases in the part concerning complaints about the length of proceedings under Article 6 § 1 and the lack of efficient remedies in this regard under Article 13 of the Convention;

No.	Application No.	Applicant’s Name	Year of Birth	Address	Date of Introduction	Date of settlement proposal or agreement signed by the State Attorney
1.	16104/06	Miroslav GMAJNER	1954	Velenje	03/04/2006	18/10/2010
2.	18464/06	Marjan KODER	1941	Tolmin	04/04/2006	07/10/2010
3.	19081/06	Barbara SEDONJA	1940	Ljubljana	25/06/2006	11/10/2010
4.	20250/06	Brigita LORENČIČ	1963	Maribor	20/04/2006	26/03/2009
5.	832/07	Sonja ANTLOGA-HROVAT	1945	Zalec	26/12/2006	16/09/2010

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You are here: BAILII >> Databases >> European Court of Human Rights >> Miroslav GMAJNER and Others v Slovenia - 16104/06 [2011] ECHR 297 (25 January 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/297.html Cite as: [2011] ECHR 297